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FIFTH
SECTION
CASE OF LAZAROV v. BULGARIA
(Application
no. 21352/02)
JUDGMENT
STRASBOURG
22 May 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Lazarov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Snejana
Botoucharova,
Volodymyr Butkevych,
Rait
Maruste,
Renate Jaeger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 29 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21352/02) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Mr Petar Ivanov Lazarov
(“the applicant”), on 18 May 2002.
- The
applicant was represented by Ms Z. Kalaydjieva, a lawyer practising
in Sofia. The Bulgarian Government (“the Government”)
were represented by their Agent, Ms M. Kotzeva, of the Ministry of
Justice.
- On
22 March 2006 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Sofia.
- The
applicant's late father owned a house, a garage and an outhouse with
some adjoining land in Sofia. By a mayor's order of 28 March 1989 the
above property was expropriated for the construction of a school. The
expropriated property was valued at 16,878.20 old Bulgarian levs
(BGL). The order, based on section 98(1) of the 1973 Territorial and
Urban Planning Act (“the TUPA” – “Закон
за териториалното
и селищно
устройство”)
provided that the applicant was to be compensated with a flat and his
father was to be compensated with another flat and a garage. Both
flats were to be situated in a building which the municipality
intended to construct.
- By
a supplementary order of 15 June 1990, based on section 100 of the
TUPA, the mayor indicated the exact flats and the garage with which
the applicant and his father were to be compensated, specifying the
building in which they would be located and, in the case of the
flats, also their precise surface area.
- On
an unspecified date the municipal authorities opened blocked housing
savings accounts with the State Savings Bank in the name of the
applicant and his father. An amount equivalent to the estimated value
of the expropriated real estate (BGL 16,878.20) was deposited in the
housing savings account of the applicant's father. The latter
transferred BGL 8,878 into the applicant's housing savings account.
As the value of the flats and garage offered in compensation was
higher than that of the expropriated property, the applicant and his
father had to make top-up payments on unspecified dates in the amount
of BGL 92,000. The nominal sum was increased considerably owing to
the high inflation rate during the relevant period.
- In
1991 the municipal authorities took possession of the expropriated
property and the buildings were pulled down. However, the
construction of the school never started.
- While
awaiting the construction of the flats the applicant, his family and
parents were settled in a municipal council flat. The flat was much
smaller than the total surface area of the flats offered in
compensation and was situated in a building owned by the municipality
which was in a poor state of repair.
- The
applicant's father died in 1992. In December 1999 his mother died,
whereupon he became the sole owner of all the “future”
real property allocated in compensation for the 1989 expropriation.
- The
construction of the building in which the flats and the garage were
to be located did not start as planned.
- The
applicant made numerous complaints to the municipal authorities, to
no avail. By a letter of 5 July 1999 the municipal company Sofinvest
EOOD informed the applicant that the construction had not yet started
and that no funding was available.
- Meanwhile,
on 20 March 1995, the applicant requested the mayor to rescind the
expropriation order in accordance with section 102 of the
1951 Property Act. On 9 November 1995 the mayor refused on the
ground that the house had been demolished and the expropriated plot
had been cleared for groundwork. According to the relevant
legislation in force, the expropriation order could only be rescinded
if the land had not been cleared for groundwork. The applicant lodged
an appeal with the Sofia City Court. In a judgment of 10 June 1998
the Sofia City Court upheld the mayor's refusal for the same reason.
- On
10 November 1998 the applicant filed a request with the local
governor seeking restitution of the expropriated plot under the
provisions of the 1997 Compensation for Expropriated Property Act. On
20 January 1999 the local governor refused on the ground that the
expropriated property did not fall within the ambit of that Act.
- On
6 April 2001 the applicant filed another request with the
municipality seeking to recover the expropriated plot. On 3 July 2001
the deputy mayor advised the applicant to renounce his claims to
compensation for the demolished house in a notarised declaration.
Although the applicant submitted the requested declaration, on 20
March 2002 the mayor refused to rescind the expropriation order
because the house had been demolished and the plot cleared and
occupied by the municipality. The applicant did not lodge an appeal
with the courts against this refusal.
16. On
an unspecified date the municipal authorities sold the real property
expropriated from the applicant's family to a private third party who
planned to build a block of flats on it.
- On
a further request from the applicant the mayor of the municipality,
in orders of 23 May and 8 June 2006, allocated two flats to him,
equivalent to those originally due, in buildings under construction.
As the municipality did not have any garages available, the orders
did not concern the garage which the applicant was entitled to
receive.
- On
3 April 2007 two flats apparently equivalent to those originally due
were delivered to the applicant. As of March 2008 the garage remained
undelivered.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
104(1)(c) of the Property Act as in force between 1990 and 1996
provided that in the case of compensation with a “future”
flat a blocked account was to be opened in the name of the owner with
the State Savings Bank. An amount corresponding to the estimated
value of the expropriated flat was to be deposited in that account.
Section 102(1) provided that the valuation was to be made on the
basis of the market price at the time of expropriation.
- Where
the estimated value of the property offered in compensation was
higher than that of the expropriated property, the expropriated owner
had to pay the difference (section 259 of the rules on application of
the TUPA).
- The
remaining relevant domestic law and practice is summarised in
Kirilova and Others v. Bulgaria (nos. 42908/98, 44038/98,
44816/98 and 7319/02, §§ 72-9, 9 June 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Article 1 of Protocol No. 1 that for many
years the authorities had failed to deliver the real property to
which he was entitled as compensation for his expropriated property
and had eventually delivered only part of the property to which he
had a vested right.
- Article
1 of Protocol No. 1 provides:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government did not contest the applicant's arguments but merely drew
attention to the fact that the authorities had eventually offered the
applicant two flats equivalent to those originally due.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Court notes at the outset that the present case is very similar to
Kirilova and Others (cited above), in which it found a
violation of Article 1 of Protocol No. 1.
- In
the instant case, as in Kirilova and Others, the applicant had
a vested right to the flats and the garage offered by the authorities
as compensation for the expropriation of his father's property, and
was the victim of interference with his right to peaceful enjoyment
of his possessions consisting in the authorities' continued failure
to deliver, over an excessively long period, the real property
awarded to him (see paragraphs 5-18 above).
- Since
the case does not concern – and the Court has no jurisdiction
ratione temporis to examine – the issues linked to the
taking of the applicant's father's property in 1989 or the adequacy
of the compensation awarded at that time, the interference cannot be
equated to a deprivation of possessions within the meaning of the
second sentence of the first paragraph of Article 1 of Protocol No.
1. The situation thus comes within the first sentence of that
paragraph, which lays down in general terms the principle of peaceful
enjoyment of property (see Kirilova and Others v. Bulgaria,
cited above, §§ 104 and 105).
- In
order to ascertain whether a fair balance was struck between the
demands of the general interest of the community and the requirements
of the protection of the individual's fundamental rights, the Court
must examine whether by reason of the State's inaction the applicant
had to bear a disproportionate and excessive burden (see Broniowski
v. Poland [GC], no. 31443/96, § 150, ECHR 2004 V,
and Kirilova and Others v. Bulgaria, cited above, § 106).
- With
regard to the delay in providing the applicant with compensation, the
Court notes that while the authorities may have experienced
difficulties in constructing the flats in issue owing to a strained
financial situation, a lack of funds cannot justify lengthy delays
such as those in the present case (see Kirilova and Others,
cited above, § 122). The applicant remained without the
compensation to which he was entitled under domestic law for a period
of more than seventeen years, a period which is clearly excessive and
unjustified. Moreover, he was faced with the passive attitude of the
authorities which, despite their obligation to act in good time and
in a consistent and appropriate manner and the numerous complaints
made by the applicant, failed to find a solution to the problem. The
applicant was thus left in a position of uncertainty as to whether or
when he would receive compensation (see paragraphs 5-18 above).
- In
particular, the applicant's request that the expropriation order be
rescinded was refused (see paragraphs 13-15 above). Furthermore, –
as in Kirilova and Others – as a result of a combination
of legal and practical obstacles he could not obtain the compensation
due to him through other means such as a fresh valuation, unblocking
of the housing savings account or an action for damages against the
State (see Kirilova and Others, cited above, §§
110 20).
- Having
regard to the excessive delays, the authorities' passive attitude
over a lengthy period and the situation of uncertainty in which the
applicant was placed, the fact that in 2007 two flats apparently
equivalent to those originally due were delivered to the applicant
cannot be seen as restoring the fair balance required by Article 1 of
Protocol No. 1. Furthermore, the garage to which the applicant is
also entitled has still not been delivered (see paragraphs 17 and 18
above).
- The
Court finds that the above is sufficient to consider that the
applicant had to bear a special and excessive burden which upset the
fair balance which has to be struck between the demands of the public
interest and protection of the right to the peaceful enjoyment of
possessions.
- It
follows that there has been a violation of Article 1 of
Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained of a violation of Article 13 on account of the
alleged lack of any machinery in Bulgarian law capable of remedying
the situation in issue. Article 13 provides:
“Everyone whose rights and freedoms as set forth
in the Convention are violated shall have an effective remedy before
a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”
- Having
regard to the considerations and conclusions set out above, the Court
considers that it is not necessary to examine the issue separately
under Article 13 (see Kirilova and Others, cited above, §
127).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
- The
applicant claimed the following amounts: (1) 7,000 euros (EUR) in
respect of the value of the garage which was never delivered;
(2) 230,460 United States dollars (USD) in respect of rent
(USD 95,877) plus interest (USD 134,583) which he would allegedly
have received had he let out the two flats and the garage during the
period between March 1989 and December 2006, and (3) approximately
USD 43,500 for losses allegedly resulting from the fact that the sums
deposited in the applicant's and his father's housing savings
accounts could not be used by them. The applicant submitted two
expert reports.
- The
Government did not express an opinion on the applicant's claims for
just satisfaction.
- The
Court finds it appropriate to adopt the same approach as in Kirilova
and Others v. Bulgaria (just satisfaction), nos. 42908/98,
44038/98, 44816/98 and 7319/02, §§ 23-33, 14 June 2007.
- As
regards the damage stemming from the authorities' continuing failure
to deliver the garage, the Court considers that the best way to
redress the effects of the breach of Article 1 of Protocol No. 1 is
for the respondent State to deliver the garage to the applicant. If
the respondent State does not make such delivery within three months
from the date on which this judgment becomes final, it must pay the
applicants a sum corresponding to the current value of the garage.
Having regard to the valuation report submitted by the applicant and
the information available to it about real estate prices in Bulgaria,
the Court assesses this value at EUR 6,000.
- As
regards the alleged loss of earnings resulting from the fact that the
money deposited in the applicant's housing savings account remained
inoperative, the Court does not find a causal link between any such
loss and the violation found in the present case. In particular, it
is obvious that, had the municipality delivered on time the property
due to the applicant, the amount in question would have been paid as
early as 1991 or 1992 to cover the price of the flats.
- In
respect of the alleged loss of rent, the Court observes that the
applicant has not shown that he or his family had alternative housing
available to them and, consequently, that they would have let out the
two flats and the garage. Furthermore, the applicant, who was
provided with temporary municipal housing, did not claim that he or
his family had incurred expenses in order to find accommodation while
awaiting delivery of the two flats, or that they had rented a garage.
The Court nevertheless considers that the applicant has suffered a
certain loss of opportunity on account of not having been able to use
and enjoy the flats and the garage for excessively long periods of
time (see Kirilova and Others v. Bulgaria (just satisfaction),
cited above, § 33). Ruling in equity, it awards EUR 8,000 under
this head.
2. Non-pecuniary damage
- With
regard to non-pecuniary damage, the applicant submitted that he had
suffered frustration and anxiety over the period of many years during
which the authorities had failed to deliver the compensation due. He
left it to the Court to determine the exact amount. The Government
did not comment.
- The
Court considers that the breach of Article 1 of Protocol No. 1 caused
the applicant non pecuniary damage arising out of the
frustration suffered as a result, firstly, of the prolonged failure
of the authorities to deliver the property to which he was entitled
and, secondly, of the authorities' inability and reluctance to solve
his problem for such a long time. The applicant and his family were
further distressed by the need to live in worse conditions, in the
municipal housing where they were accommodated (see paragraph 9
above). The Court, ruling in equity, awards the applicant EUR 5,000
under this head.
B. Costs and expenses
- The
applicant claimed EUR 6,720 for costs and expenses, including EUR
6,170 in respect of legal fees, EUR 70 for translation costs, EUR 100
for other general office expenses and EUR 480 for two valuation
reports. In support of his claim, the applicant presented a legal
fees agreement, contracts with the valuation experts and a receipt
for translation costs.
- The
Government did not comment.
- The
Court notes that the applicant's claim in respect of legal fees is
supported by relevant documents but is not fully substantiated, as
the number of hours of legal work claimed has not been stated. Also,
the sum claimed in respect of the valuation reports appears
excessive. Having regard to the above and taking into account the
amount of EUR 850 received in legal aid from the Council of Europe,
the Court awards EUR 2,000 in respect of all costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that no separate issue arises under
Article 13 of the Convention;
- Holds that the respondent State is to deliver to
the applicant, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2 of the
Convention, the ownership and possession of the garage he is entitled
to;
- Holds
(a) that
failing such delivery, the respondent State is to pay the applicant,
within the same period of three months, EUR 6,000 (six thousand
euros), to be converted into Bulgarian levs at the rate applicable at
the date of settlement, in respect of pecuniary damage concerning the
garage, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Bulgarian levs at the rate applicable at the date of
settlement:
(i) EUR
8,000 (eight thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage concerning the apartments;
(ii) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage concerning all complaints;
(iii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 22 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
